State of Louisiana v. Calvin Horton

Judgment rendered November 18, 2020.
Application for rehearing may be filed
within the delay allowed by Art. 922,
La. C. Cr. P.

No. 53,534-KA

COURT OF APPEAL
SECOND CIRCUIT
STATE OF LOUISIANA

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STATE OF LOUISIANA Appellee

versus

CALVIN HORTON Appellant

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Appealed from the
First Judicial District Court for the
Parish of Caddo, Louisiana
Trial Court No. 357463

Honorable John D. Mosely, Jr., Judge

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LOUISIANA APPELLATE PROJECT Counsel for Appellant
By: Douglas L. Harville

JAMES E, STEWART, SR. Counsel for Appellee
District Attorney

ALEXANDRA PORUBSKY
TOMMY J. JOHNSON
Assistant District Attorneys

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Before PITMAN, STEPHENS, and THOMPSON, JJ.

THOMPSON, J.

Calvin Horton was convicted in the First Judicial District Court,

Parish of Caddo, with the Honorable John D. Mosely, Jr., presiding, of

simple burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2,

and adjudicated a second-felony habitual offender. Horton was sentenced to

24 years’ imprisonment at hard labor, and he now appeals the length and

conditions of the sentence imposed. For the following reasons, Horton’s

sentence is affirmed.

FACTS

Horton had a 2015 conviction of simple burglary of an inhabited

dwelling at the time of the commission of the crime giving rise to this

matter. He was subsequently charged by bill of information for simple

burglary of an inhabited dwelling, in violation of La. R.S. 14:62.2, and

proceeded to a jury trial, which commenced on April 8, 2019. He was found

guilty by a unanimous jury.

At the trial, Joshua Burson, who resides at 3001 Burson Drive in

Shreveport, Louisiana, testified he was away from his home on the morning

of September 11, 2017, when he was notified that officers with the

Shreveport Police Department had responded to a burglary call at his home.

Phyllis Daulong, who resided across the street from the Burson house,

testified that she heard a banging sound and observed a man kicking down

the door of Burson’s house, then entering the house. She also observed

another man under the carport of the Burson house. Daulong instructed her

daughter, Marcella Ogunmayin, to call the police. Ogunmayin testified that

she also saw two African American men enter the Burson house and that

officers arrived within ten minutes of her call.

James Carpenter, who resided two houses away from the Burson

house, testified that he observed a car drive down the street very slowly and

then stop in front of the Burson house. Two individuals exited the vehicle

and walked toward the Burson house. Concerned for his safety and that of

his neighbors, Carpenter testified that he retrieved his pistol and walked

across the street, where he observed that the front door of the Burson house

was damaged and ajar. He was crossing the street to the Burson house when

officers arrived on the scene. He stated that he returned to his house and

then heard a gunshot. He went to his backyard to check his property and

located one of the individuals that he saw near the Burson house. He

testified that, at gunpoint, he instructed the man to lie on the ground while he

called for help. At trial, he identified that man as Horton.

Corporal Henry Burak, with the Shreveport Police Department,

testified that he investigated the incident at the Burson house on September

11, 2017. Upon arrival at the house, he observed someone running through

the backyard, away from the residence. He identified Horton as the

individual he saw. He testified that he did not pursue Horton, but secured

the rear of the house. He noted an open window in the back of the house

near where Horton fled.

Corporal Clarence Wray, Jr., also of the Shreveport Police

Department, testified that he heard someone calling for help as he

approached the Burson house. He located Carpenter and an African

American man in Carpenter’s backyard. Carpenter had a gun pointed at the

man, who was then handcuffed and taken into custody by the officers and

transported to the police station.

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When Burson arrived at his house, he found that several rooms

appeared to have been ransacked, but nothing had been taken. He noted that

his power tools were on the kitchen table, “like they were ready to be just

taken,” instead of in the usual tool bags, indicating the intended thief had

been interrupted. He also noted that a window was broken in his daughter’s

room at the back of the residence, and a sock was found outside of that

window. Burson testified that he did not give Horton or his accomplice

permission to enter his home.

Corporal Betsy Huey, of the Shreveport Police Department’s Crime

Scene Unit, testified that she processed the scene at the Burson house. She

identified photographs of the house, including photographs of the damaged

front door. She testified that the interior of the house appeared to have been

ransacked.

Dr. Jessica Esparza, who was accepted as an expert witness in

forensic DNA analysis, testified that DNA obtained from a sock found

beneath the broken window at the Burson house matched reference samples

obtained from Horton. Dr. Esparza is employed as the DNA technical leader

at the North Louisiana Criminalistics Laboratory, where she has worked for

over ten years. She testified it is her responsibility to ensure the scientific

integrity of the section, train new analysts, and perform casework. She

earned her Bachelor’s degree in biochemistry from Rice University in

Houston ,Texas, and holds a Ph.D. in molecular genetics and genomics from

Washington University in St. Louis. She is a member of the American

Academy of Forensic Science and has been qualified as an expert witness 33

times in cases in 14 different parishes and two federal jurisdictions.

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On April 10, 2019, a unanimous jury found Horton guilty of simple

burglary of an inhabited dwelling. Horton’s motions for new trial and post-

verdict judgment of acquittal were denied by the district court.

On July 18, 2019, the state filed a second-felony habitual offender bill

against Horton based on his prior conviction by guilty plea of simple

burglary of an inhabited dwelling in 2015, also in the First Judicial District

Court. On September 16, 2019, Horton was adjudicated a second-felony

habitual offender and subsequently sentenced to 24 years’ imprisonment at

hard labor. A motion to reconsider sentence was denied by the district court.

This appeal followed.

DISCUSSION

Assignment of Error: The Trial Court erred by imposing an
unconstitutionally harsh and excessive sentence on Calvin Horton, the
statutory maximum sentence of 24 years of hard labor without the
benefit of probation, parole, or suspension of sentence, based on the
commission of two non-violent crimes.

On review, Horton argues that his sentence is grossly

disproportionate when weighed against the harm done to society and that 24

years’ imprisonment for two nonviolent offenses shocks the sense of justice.

He notes that the trial court imposed the maximum sentence without

ordering a presentence investigation report and provided little explanation

for the imposition of the maximum sentence. He argues that his sentence

was based upon the commission of two nonviolent offenses and that his

criminal history includes a number of dismissed charges and a number of

charges for which no disposition was noted. Citing Justice Crichton’s

concurrence in State v. Guidry, 16-1412 (La. 3/15/17), 221 So. 3d 815, He

argues that his sentence constitutes a gross misuse of the habitual offender

law in a way that violates constitutional prerogatives. He asserts that his
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sentence makes no measurable contribution to the acceptable goal of

punishment and does nothing more than purposefully impose pain and

suffering.

In response, the state argues that the trial court properly considered all

relevant factors prior to sentencing, including Horton’s criminal history and

lack of remorse. It notes that the daytime burglary establishes the boldness

of Horton and his codefendant and that this burglary was only one of a series

of armed burglaries perpetrated by the two men. It further argues that

although this offense is not a crime of violence (despite two witnesses

hearing a gunshot), Horton’s criminal history shows a propensity for

violence. Specifically, it notes that since 2008, Horton has been arrested for

illegal possession of stolen things, illegal use of weapons, illegal possession

of a firearm by a juvenile, walking in roadway, domestic abuse battery,

aggravated battery, possession of a firearm by a convicted felon, multiple

charges of simple burglary of an inhabited dwelling, theft, and cruelty to

animals, both simple and aggravated. It also notes that Horton had his

probation revoked twice previously and was on parole at the time of this

arrest. Further, it specifically notes that several of the burglaries attributed

to Horton and his codefendant include firearms fitted with suppressors and

the killing of family pets.

Appellate courts apply a two-pronged test when reviewing a sentence

for excessiveness: (1) whether the trial court adequately considered the

guidelines established in La. C. Cr. P. art. 894.1, and (2) whether the

sentence is constitutionally excessive. State v. Gardner, 46,688 (La. App. 2

Cir. 11/2/11), 77 So. 3d 1052.

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This Court must first determine whether the record shows that the trial

court took cognizance of the criteria set forth in La. C. Cr. P. art. 894.1. The

trial judge is not required to list every aggravating or mitigating

circumstance so long as the record reflects that he adequately considered the

guidelines of the article. State v. Smith, 433 So. 2d 688 (La. 1983); State v.

DeBerry, 50,501 (La. App. 2 Cir. 4/13/16), 194 So. 3d 657, writ denied, 16-

0959 (La. 5/1/17), 219 So. 3d 332. Articulation of the factual basis for a

sentence is the goal of La. C. Cr. P. art. 894.1, rather than rigid or

mechanical compliance with its provisions. Where the record clearly shows

an adequate factual basis for the sentence imposed, remand is unnecessary

even where there has not been full compliance with La. C. Cr. P. art. 894.1.

State v. Lanclos, 419 So. 2d 475 (La. 1982); State v. DeBerry, supra.

In the present matter, the trial court considered factors relevant to

sentencing prior to sentencing Horton to the maximum sentence of 24 years’

imprisonment at hard labor, as a second-felony habitual offender. The

sentencing judge specifically noted he was basing his decision on the

testimony and evidence in the record. The trial court stated that Horton had a

significant criminal history and had failed to show any remorse for this

offense. It further noted the heinous nature of this offense. As to this prong

of the analysis of the appropriateness of the sentence, this Court finds that

the trial court adequately considered the guidelines set forth in La. C. Cr. P.

art. 894.1.

Next, this Court must determine whether the sentence is

constitutionally excessive. Even when it falls within statutory guidelines, a

sentence can be constitutionally excessive if: (1) the punishment is so

grossly disproportionate to the severity of the crime that, when viewed in
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light of the harm done to society, it shocks the sense of justice, or (2) it

serves no purpose other than to needlessly inflict pain and suffering. State v.

Dorthey, 623 So. 2d 1276 (La. 1993); State v. Bonanno, 384 So. 2d 355 (La.

1980); State v. Weaver, 01-0467 (La. 1/15/02), 805 So. 2d 166; State v.

DeBerry, supra.

The trial court is given wide discretion in the imposition of sentences

within the statutory limits, and the sentence imposed should not be set aside

as excessive in the absence of a manifest abuse of its discretion. State v.

Williams, 03-3514 (La. 12/13/04), 893 So. 2d 7; State v. Diaz, 46,750 (La.

App. 2 Cir. 12/14/11), 81 So. 3d 228. On review, an appellate court does not

determine whether another sentence may have been more appropriate but

whether the trial court abused its discretion. State v. Williams, supra; State

v. Free, 46,894 (La. App. 2 Cir. 1/25/12), 86 So. 3d 29.

La. R.S. 14:62.2(B) provides that “[w]hoever commits the crime of

simple burglary of an inhabited dwelling shall be imprisoned at hard labor

for not less than one year nor more than twelve years.” The sentence

enhancement arises from La. R.S. 15:529.1, which provides for the

sentencing of a second-felony habitual offender, in pertinent part, as

follows:

A. Any person who, after having been convicted within this
state of a felony, or who after having been convicted under the
laws of any other state or of the United States, or any foreign
government of a crime which, if committed in this state would
be a felony, thereafter commits any subsequent felony within
this state, upon conviction of said felony, shall be punished as
follows:

(1) If the second felony is such that upon a first
conviction the offender would be punishable by
imprisonment for any term less than his natural life, then
the sentence to imprisonment shall be for a determinate
term not less than one-half the longest term and not more
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than twice the longest term prescribed for a first
conviction.

The Louisiana Supreme Court has recently addressed the

constitutionality of maximum sentences imposed on defendants via the

habitual offender law. State v. Kennon, 2019-00998 (La. 09/09/20), 2020

WL 5405710. The Kennon court vacated the defendant’s 60-year sentence

for the sale of $350 worth of cocaine, the maximum sentence authorized as a

second time felony offender. Id. The court found that this sentence was

constitutionally excessive because the defendant had never been convicted

of a crime of violence and his nonviolent crimes had been sporadic. The

court noted that, considering the age of the defendant, the 60-year sentence

was effectively a life sentence. The court upheld the defendant’s earlier

unenhanced sentences of 35 years at hard labor, to run consecutively. Id.

Unlike the defendant in Kennon, Horton’s long criminal history

indicates the undue risk that he will commit another crime. Horton’s

conduct certainly threatened harm to those around him, as he burgled

inhabited homes in the middle of the day. Further, Horton is 30 years old

and the imposition of the 24-year sentence is not an effective life sentence.

Based on the facts of this case and the likelihood that the crime would

occur again, the sentence imposed does not shock the sense of justice, nor is

it grossly disproportionate to the offense for which Horton was convicted.

This Court finds that the trial court appropriately considered all factors in the

second prong of sentencing Horton and that the imposition of 24 years’ hard

labor on Horton as a second felony habitual offender is not constitutionally

excessive. The trial court was within its discretion in imposing the sentence,

and this Court cannot find that its purpose was to needlessly inflict pain and

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suffering. For the foregoing reasons, this assignment of error is without

merit.

CONCLUSION

For the aforementioned reasons, Horton’s sentence is AFFIRMED.

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